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Supreme Court of India
Thomas Lawrence vs The State Of Kerala on 29 October, 2020Author: Rohinton Fali Nariman
Bench: Rohinton Fali Nariman, Navin Sinha, Hon’Ble Ms. Banerjee
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2535 of 2020
THOMAS LAWRENCE …APPELLANT
VERSUS
THE STATE OF KERALA & ORS. …RESPONDENTS
JUDGMENT
R.F. Nariman, J.
1. The present appeal arises out of an order of the National Green
Tribunal, Principal Bench, New Delhi, dated 06.11.2019, in which
the NGT states:
“In view of order dated 14.10.2019 in O.A. No. 71 of
2019, Sanjeev SJ, President, Environmental Protection
and Research Council v. State of Kerala, no separate
order is necessary in this matter as the issue raised can
be gone into in the course of EIA study in the said matter.
The application is disposed of.”
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2020.10.29
2. Mrs. Anitha Shenoy, learned senior advocate, appearing on
17:08:56 IST
Reason:
behalf of the appellant/PIL-Petitioner states that the order dated
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14.10.2010 dealt with a completely different matter, namely,
Original Application No.71 of 2019, which was concerned with a
challenge to the environmental clearance granted to one Dragon
Stone Reality Private Limited. This clearance was in respect of
an area of 9.75 acres of the Veli-Akkulam Wetland. As against
this, the present Execution Application No.39 of 2019 arises out
of an Original Application No.875 of 2018, which is in respect of
violations with regard to 19.73 acres of the Veli-Akkulam
Wetland. Thus, the present case concerns itself with an order
dated 19.12.2018 of the NGT which reads as follows:
“Allegation in this letter, which has been treated as an
application, is that there is mass destruction of Wetlands
and 10 acre Pond inside the Technopark Region,
Thiruvananthapuram, Kerala.
Let the District Collector, Trivandrum look into the matter
and take appropriate action in accordance with law within
one month.
Copy of this order along with complaint be sent to the
District Collector, Trivandrum by e-mail for compliance.
Needless to say that order of National Green Tribunal is
binding as a decree of Court and non-compliance is
actionable by way of punitive action including
prosecution, in terms of the National Green Tribunal Act,
2010.
The application is disposed of.”
Learned counsel for the appellant through her written submissions
placed reliance on reports of local authorities including the
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Agricultural Officer, Attipura and Village Officer, Attipura to argue
that the land over which the construction was taking place was a
wetland and that in view of the Kerala Conservation of Paddy Land
and Wetland Act, 2008, the construction would be illegal. She
further placed reliance on several orders of this Court, including the
Order reported as M.K. Balakrishnan v. Union of India (2017) 7
SCC 810(2), to show that in view of the embargo on reclamation of
wetlands under Rule 4 of the Wetlands (Conservation and
Management) Rules, 2010, the action of the State in the instant
case would be illegal. She further argued that in view of the bar on
reclamation of wetlands as described above, the order dated
30.04.2019 passed by the Collector would not be “in accordance
with law” as mentioned in the order of the NGT dated 19.12.2018
thereby making the Execution Petition filed by the appellant
maintainable.
3. This Court was approached as it has been alleged that the
District Collector has not taken action in accordance with the
order dated 19.12.2018 as a result of which it is necessary to set
aside the NGT order and remand the matter for de novo hearing.
4. Shri Vikas Singh, learned senior advocate appearing on behalf of
the State of Kerala has pointed out that by an order dated
30.04.2019, the District Collector has held as follows:
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“The Hon’ble National Green Tribunal, New Delhi
registered an application (OA No.875/2018) based on a
complaint received by e-mail from Sri. Thomas
Lawrence, regarding mass destruction of wetlands and
10 Acre ponds inside the Technopark Campus,
Thiruvananthapuram. The Hon’ble Tribunal vide order
dtd. 19.12.2018 directed District Collector,
Thiruvananthapuram to look into the matter and take
appropriate action in accordance with law within one
month. Revenue (P) Department as per G.O (MS) No.
40/2018/Rev dtd. 03.02.2018 accorded sanction for
reclamation of 861.2 Ares of land in Survey No. 279, 280,
281, 282, 290, 291, 292, 295, 296, 297, 353, 355, 358,
359 of Attipra Village, Thiruvananthapuram Taluk for the
IIIrd phase Development of Technopark,
Thiruvananthapuram as per the provision in Sec 10 of
Kerala Conservation of Paddy and Wetland
(Amendment) Ordinance 2017. By virtue of G.O dated
03.02.2018, for the purpose of development of
Technopark (third phase), necessary exemption has
been granted by the Government, as contemplated under
the Kerala Conservation of Paddy Land and Wetland Act
of 2008 and the Ordinance of 2017 made thereunder,
considering the same as one falls under “public purpose”,
as defined under Section 2 (xiv) of the Act of 2008.
Accordingly, 861.2 Ares of land was reclaimed as per
Section 10 of the Ordinance of 2017. While granting
exemption for the purpose of reclamation, as aforesaid,
to the property scheduled therein necessary safeguards
were also directed to be maintained for water
conservation. In the above circumstances, no action
whatsoever can be taken at the level of District Collector
under Sections 11 and 13 of the Act of 2008.”
In addition, he pointed out that way back in 2003, these lands
were covered by land acquisition notifications showing that they
were paddy land/converted paddy land and/or dry land and not
wetland as alleged by the petitioner. Shri Pinaki Mishra, learned
senior advocate, appearing on behalf of Respondent Nos.7 and
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9, showed us a map in which it is clear that the Aakulam lake was
at a distance of 3 kms from the impugned site. He also showed
us on the map that Technopark Phase II was already completed
as was Technopark Phase I, Technopark Phase III being the
present project. According to him, the petitioner has missed the
bus and has knocked at the doors of the NGT after huge
constructions had already been undertaken after all permissions
had been obtained including permissions under Section 10 of
The Kerala Conservation of Paddy Land and Wetland Act, 2008.
He further argued, placing reliance on a response to an RTI
application dated 07.10.2020, that the State Wetland Authority,
Kerala had prepared a draft list comprising of 40 wetlands in
Kerala and that the land involved in the present case has not
been identified as a wetland. He also pointed out that the
appellant not having challenged the order of the NGT dated
19.12.2018 or the order of the Collector dated 30.04.2019, the
execution application filed in the present case would be
infructuous and was therefore rightly dismissed by the NGT vide
the impugned order.
5. Given the fact that the Collector has passed an order pursuant to
the NGT’s order dated 19.12.2018, it is clear that the execution
application filed before the NGT has become infructuous. It is
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open to the petitioner to challenge the order of the Collector
dated 30.04.2019 in accordance with law. If such challenge is
made within a period of 8 weeks from today, the petitioner’s
challenge will not be dismissed solely on the ground of delay.
…………………………………….. J.
(ROHINTON FALI NARIMAN)
…………………………………….. J.
(NAVIN SINHA)
…………………………………….. J.
(INDIRA BANERJEE)
New Delhi;
October 29, 2020.
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